IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 402 of 1999(F)
1. SANKU THANKAPPAN
... Petitioner
Vs
1. BALACHANDRAN
... Respondent
For Petitioner :SRI.SIBY MATHEW
For Respondent :SRI.T.I.ABDUL SALAM
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/02/2009
O R D E R
THOMAS P. JOSEPH, J.
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S.A.No.402 of 1999
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Dated this the 20th day of February, 2009.
JUDGMENT
The dispute which is carried into this Second Appeal between near
relatives is in respect of the right of respondents to recover 19 cents of land
which admittedly now is in the possession of the appellant. Respondents 1 to 7,
9 and 10 are the legal representatives of Sanku Narayanan. Appellant is the
brother of Sanku Narayanan. The suit property originally belonged to Sanku
Narayanan as per partition deed No.380 of 1956, a registration copy of which
was marked in the first appellate court as Ext.A3 on the side of respondents 1 to
8. According to respondents 1 to 8, Sanku Narayanan along with his parents
who had life interest over the suit property assigned it in favour of the
respondents as per assignment deed No.853 of 1956 dated 2.4.1956 and since
then, they were in possession and enjoyment of the property paying revenue.
They produced Ext.A2, receipt dated 6.9.1985 for payment of revenue for the
suit property for the years 1984-85 and 1985-86. On the premises that they are
in possession and enjoyment of the said property, they sued the appellant for a
decree of prohibitory injunction against trespassing into the suit property.
Respondents 9 and 10 who also had right along with respondents 1 to 7 were
impleaded as defendants 2 and 3 in the suit. Appellant contended that as per
Ext.B1, agreement dated 18.10.1978 executed by Sanku Narayanan, the latter
had agreed to sell the suit property in his favour for consideration and he was put
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in possession and enjoyment of the said property. In the court below, an
advocate commissioner was deputed to inspect the property. Advocate
commissioner filed Exts.C1 to C3, plan, report and list, respectively. In the light
of the report of the advocate commissioner, respondents 1 to 8 got the plaint
amended as one for recovery of possession on the strength of their title.
Learned Munsiff found that apart from Ext.A1, respondents 1 to 8 did not
produce the prior document of title (Ext.A3) and prove the identity of the suit
property. The suit was dismissed. Respondents 1 to 8 took up the matter in
appeal. In the appeal the registration copy of the partition deed as per which
Sanku Narayanan got title and his parents got life interest over the suit property
was produced by respondents 1 to 8. Since that document is admitted by the
appellant also, learned Additional District Judge received the document as
additional evidence and marked it as Ext.A3. Learned Additional District Judge
found that boundary descriptions in the A schedule of Ext.A3, A1, the plaint
schedule and the descriptions given by the advocate commissioner tallied, there
is no dispute raised by the appellant regarding the identity of the property, found
that respondents have title over the suit property, that execution of Ext.B1 is not
proved and at any rate, that cannot be taken into account since by the time
Ext.B1was allegedly executed, Sanku Narayanan had no right, title or interest
over suit property and accordingly, granted decree in favour of the respondents
for recovery of possession. That judgment and decree are under challenge in
this Second Appeal.
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2. The substantial questions of law formulated for a decision are –
whether the first appellate court was right in holding that Sanku Narayanan had
no subsisting right over the suit property at the time of execution of Ext.B1 and
whether the first appellate court was correct in holding that execution of Ext.B1
is not proved and at any rate, did not confer right on the appellant.
3. Learned counsel for the appellant contended that the first appellate
court ought not to have taken Ext.A3 into account since the case spoken by the
first respondent as PW1 in the trial court was that the original partition deed is
lost and hence he is unable to produce the same in which case he could have
produced atleast the registration copy of the partition deed in the trial court. It
is also contended by the learned counsel that the finding of the first appellate
court regarding the execution of Ext.B1 is not correct. Counsel for contesting
respondents supported the judgment and decree passed by the first appellate
court.
4. I went through the records of the case. There is infact no
contention raised by the appellant in the written statement as to the identity of
the property. Rather, he also claims that he is in possession of the suit property
though, according to him as per Ext.B1. Trial court found against the identity of
the property for the reason that the prior document of title (Ext.A3) referred to in
Ext.A1 is not produced. Assuming that as a defect, that defect is curred by the
contesting respondents by producing atleast the registration copy of the partition
deed in appeal and getting it exhibited in evidence as Ext.A3. Appellant has no
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reason to challenge that as he is also admitting the partition deed and the
derivation of title in favour of Sanku Narayanan under whom he is claiming
possessory right as per Ext.B1. There is no reason why this Court should
interfere with the finding of the first appellate court that the property is properly
identified by Exts.A1, A3 and the report and plan prepared by the advocate
commissioner.
5. So far as Ext.B1 is concerned, it is an unregistered agreement
dated 18.10.1978 said to be executed by late Sanku Narayanan. As to its
execution, what is available is only the interested version of the appellant as
DW1. He did not examine the attestors in Ext.B1. PW1, first respondent denied
that Ext.B1 was executed by his father, Sanku Narayanan. It is also seen from
Ext.B1 that on its first page where Sanku Narayanan is said to have subscribed
his signature, none of the attesting witnesses have signed. The signature of the
attesting witnesses appear only on the reverse side of the stamp paper and
unfortunately on that side, the signature of the executent does not figure. There
is no evidence that the appellant was in possession of the suit property from
18.1.1978 onwards. It is difficult to think that the appellant would not have
instituted proper proceedings for transfer of title in his favour, even if Ext.B1 were
actually executed by late Sanku Narayanan. In the circumstances the contention
that Ext.B1 was executed by late Sanku Narayanan cannot be accepted.
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6. Assuming that Ext.B1 was executed by late Sanku Narayanan, as
rightly pointed out by the first appellate court, appellant would not got any right or
interest over the suit property since Ext.A1 shows that as per registered
assignment deed, Sanku Narayanan along with his parents who had life interest
over suit property conveyed their right, title, interest and possession in favour of
respondents on 2.4.1956. If that be so, there was no right subsisting with
Sanku Narayanan on 18.10.1978 to agree to be conveyed to the appellant as
per Ext.B1.
7. On going through the judgment of the first appellate court, I do not
find any reason to interfere with that judgment and the decree that followed.
No other point is raised for consideration.
Second Appeal fails. It is dismissed. Parties are directed to bear their
respective costs.
C.M.P.No.1054 of 1999 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
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Thomas P.Joseph, J.
S.A.No.402 of 1999
JUDGMENT
20th February, 2009.